NE Supreme Court Upholds Denial of Variance Based on Unnecessary Hardship

This post was authored by Matthew Loeser, Esq.

Sharon Bruning and Robert Bruning leased their agricultural-zoned land in Omaha, Nebraska, to several commercial entities, and then unsuccessfully sought a variance from the requirements of Omaha’s zoning code based on a claim of unnecessary hardship before the City of Omaha Zoning Board of Appeals. The district court for Douglas County affirmed the decision of the Board.

On appeal, the Brunings contended that they were entitled to a variance as carrying out the strict letter of the ordinance would cause “unnecessary hardships.” The court noted that with respect to self-created hardships, they are those which “result from affirmative acts of the property owner and which could have been avoided through a different course of action.” 2 Patricia E. Salkin, American Law of Zoning § 13:16 at 13-133 to 13-134 (5th ed. 2018). Here, when the Brunings developed and began leasing the property to others, and thereby expanded to numerous separate businesses and uses, their activities became incompatible with agricultural use. As such, the hardship at issue was self-created.

The district court found “substantial evidence in the record” to support the Board’s decision. The record included recommendations from the City, numerous exhibits, input from stakeholders, and testimony offered at four hearings. Additionally, the Board discussed the issues extensively, including life safety, public works, zoning issues, and proposed solutions, and even toured the property during the process. The court further found that the Brunings were not deprived of all beneficial or reasonable use of their agricultural zoned land to constitute a legally cognizable hardship. As substantial evidence supported the district court’s factual findings, the denial of the variance was affirmed.

Bruning v City of Omaha, 303 Neb. 146 (5/17/2019)